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A. K. SHRIVASTAVA AND S. A. NAQVI, JJ.
Smt. Sundariya Bai Choudhary v. Union of India and Ors.
M.A. No. 903 of 2001
Decided on : 13-3-2008.
Indian Succession Act - Probate Certificate - S. 299 - The court discussed the provisions of the Indian Succession Act, 1925, particularly S. 276, S. 299, S. 63(c), and S. 59. The court also referred to Rule 54(7)(a) of Central Civil Services (Pension) Rules and relevant office memorandums. The key legal provisions discussed include the requirements for proving a Will, the definition of 'estate', and the entitlement to family pension under the Hindu Marriage Act.
Fact of the Case:
The deceased respondent's second wife filed for a probate certificate based on a registered Will in her favor, while the first wife contested, claiming entitlement to family pension.
Finding of the Court:
The court found that the registered Will was duly proved and attested, and the second wife was entitled to all retiral dues except family pension and extra remuneration. The first wife was entitled to family pension and extra remuneration.
Issues: The main issues were the validity of the registered Will, the entitlement to family pension, and the interpretation of relevant legal provisions.
Ratio Decidendi: The court held that the registered Will was duly proved and attested, and the second wife was entitled to all retiral dues except family pension and extra remuneration. The first wife was entitled to family pension and extra remuneration.
Final Decision: The appeal was partly allowed, modifying the probate order to grant the second wife all retiral dues except family pension and extra remuneration, and granting the first wife entitlement to family pension and extra remuneration.
2. The facts shorn of unnecessary details lie in narrow compass. An application under S. 276 of the Act was filed by deceased respondent-Smt. Girja Bai before the Probate Court stating therein that she got married to Chhadami Lal Choudhary on 10-9-1972 and the marriage was solemnized in accordance with the customs, rite and usage as well as according to the traditions prevailing in the Choudhary community to which she belongs. From the wedlock of Girja Bai and Chhadami Lal Choudhary, three children were born they are Ku. Janki Bai, Sohanlal and Ku. Asha. Further it has been stated in the application that earlier her husband got married to Smt. Sundariya Bai who is appellant in this appeal in the year 1958 but she never discharged her matrimonial duties and was not faithful towards her husband as she was lax of moral. Ultimately on 12-9-1970, she (first wife) left the company of her husband and eloped along with one teenage boy namely Umesh Pandey after stealing valuable items, ornaments etc. Despite several efforts were made by Chhadami Lal Choudhary she could not be searched nor she returned back to resume the matrimonial life. Chhadami Lal was serving in the Ordnance Factory and in the service record the name of appellant-Sundariya Bai (first wife) has been mentioned as his nominee.
3. It is the further case of Girja Bai that her husband on 19-8-1993 executed a registered Will in her favour and ultimately Chhadami died on 15-4-1999.
4. After his death, an application was submitted by deceased respondent-Girja Bai before respondents Nos. 1 and 2 requesting them to disburse the entire service benefits to her on the basis of the said Will and further requested them to pay family pension to her. However, respondents Nos. 1 and 2 declined and strayed their hands and told deceased respondent-Smt. Girja Bai to submit the succession certificate.
5. In this manner deceased respondent-Smt. Girja Bai filed probate application before the Probate Court arraying respondent Nos. 1 to 9 as well as appellant as parties. Respondents Nos. 6 to 9 are the sons born from the wedlock of Smt. Sundariya and Chhadami Lal Choudhary.
6. Respondents Nos. 1 and 2 filed separate written statement and appellant along with respondents Nos. 7, 8 and 9 filed a joint written statement. Respondents Nos. 3, 4 and 5 filed their joint written statement.
7. Needless to emphasize the opposition to grant probate certificate was raised by appellant who was arrayed as non-applicant No. 3 in the Probate Court as well as by their sons who were arrayed as non-applicants Nos. 6 to 9 in the Probate Court.
8. The Probate Court after framing necessary issues directed parties to adduce the evidence. Deceased respondent Smt. Girja Bai who was applicant before the Probate Court examined herself as AW-1 and also examined the attesting witnesses of the Will, namely, Kusum Choudhary (AW-2) and G. S. Thakur, Advocate (AW-4) apart from Rajjulal and Kishorilal who were examined as AW-3 and AW-5 respectively.
9. Appellant Smt. Sundariya Bai who was arrayed a non-applicant No. 3 before the Probate Court examined herself as NAW-1 and also examined Ku. Janki Choudhary and Babulal Choudhary as NAW-2 and NAW-3 respectively.
10. The Probate Court after recording the evidence of the parties came to hold that registered Will (Ex.P/1) executed by the testator Chhadami Lal in faour of deceased respondent Smt. Girja Bai (applicant before the Probate Court) is proved and eventually granted the probate certificate to her.
11. In this manner the present appeal has been filed by the first wife Smt. Sundariya Bai before this Court.
12. It has been argued by
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